BILL ANALYSIS                                                                                                                                                                                                    






          SENATE COMMITTEE ON INSURANCE
          Senator Jackie Speier, Chair


          SB 620 (Scott)                     Hearing Date:   May 7,  
          2003

          As Amended: April 29, 2003
          Fiscal:             Yes
          Urgency:       No


           SUMMARY

           Would establish new standards related to advertising, sales  
          practices, training of insurance agents, and other  
          specified activities carried out in the sale of annuities  
          to senior citizens and in the sale of investments in  
          viatical settlements to seniors. 
           
          DIGEST

          Existing law
            
           1.  Imposes, generally speaking, a special duty of  
              honesty, good faith, and fair dealing on an insurer,  
              broker, agent, and all others engaged in the  
              transaction of insurance with a prospective insured who  
              is 65 years of age or older;

          2.  Authorizes the Insurance Commissioner (IC) to assess a  
              penalty for violation of this duty;

          3.  Establishes a 30 day "free look" period following the  
              purchase of an individual life insurance product or an  
              individual annuity contract by a senior citizen, during  
              which time the senior is entitled to return the policy  
              or contract and to receive a refund of all premiums and  
              fees;

          4.  Regulates viatical settlements, as defined, and imposes  
              certain requirements on a person entering into or  
              selling viatical settlements; 
           
          This bill





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           1.  Would enact additional restrictions on advertising  
              practices that target seniors;

          2.   Would expand the scope of existing restrictions that  
              apply to deceptive or misleading sales or  
              advertisements of disability insurance to seniors 65 or  
              older to include viatical settlements and annuity  
              products;

          3.  Would prohibit advertisements for the sale of insurance  
              products to seniors from including specified terms,  
              including "seminar," "class," "informational meeting,"  
              without disclosing that the purpose of the meeting is  
              to facilitate sales;

          4.  Would prohibit advertisements to seniors from including  
              a professional designation unless the designation is  
              conferred by an accredited college or university or  
              conferred by a long-standing professional trade  
              organization that is nonprofit and not controlled by  
              founding individuals;

          5.  Would require that license information be displayed  
              next to, and in the same font as, any professional  
              designation;

          6.  Would establish a rebuttable presumption that the  
              issuance or delivery of a deferred annuity to a senior  
              is unsuitable under certain circumstances;

          7.  Would require that an issuer of annuities develop a  
              suitability plan for its agents to use when selling  
              annuities to seniors;

          8.  Would require the IC, upon a finding that an annuity  
              sold to a senior was unsuitable, to order the insurer  
              to rescind the annuity contract, return the premium,  
              and pay 10% interest per annum on the deposit amount,  
              and all fees and costs.  Additionally, the IC or court  
              would be able to levy a penalty equal to half the  
              deposit amount;

          9.  Would prohibit insurance agents, brokers and solicitors  
              who are not attorneys from sharing commissions or other  
              compensation with attorneys who are not insurance  
              agents;




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          10. Would require specific training and continuing  
              education for producers to sell annuities;

          11. Would revise the disclosure requirements applicable to  
              the sale of life insurance and annuity products to  
              seniors;

          12. For contracts originated on or after January 1, 2004,  
              would prohibit insurers from investing the premium from  
              the sale of a variable annuity contract, variable life  
              insurance contract or modified guaranty contact during  
              the free look period, unless the senior (defined as age  
              60 + in this section of the code) signs a waiver  
              permitting investment during the free look period;

          13. Would declare that a contract in #8 is void at  
              inception if returned within the free look period, but  
              if a waiver is signed and the money is invested, then  
              the senior would be entitled to a refund of the  
              account's value and any policy fee;

          14. Would declare all policies of individual life insurance  
              and all annuities in effect as of January 1, 2003 to be  
              in compliance with the new requirements (grandfather  
              clause);

          15. Would clarify that certain disclosures about surrender  
              periods and penalties, and the length of any deferral  
              period must be made prior to selling any life insurance  
              product or annuity contract to a senior citizen  
              (defined as age 60 and older in this part of the  
              existing law);

          16. Would specifically require that a senior (age 60 +) be  
              given, and sign, a disclosure of the following:
                    a)   Surrender charges;
                    b)   Length of deferral period;
                    c)             Fact that the agent will earn a  
                         commission, and a variety of factors that  
                         may affect the commission;
                    d)             Tax consequences of the sale of  
                         specified investments used to purchase the  
                         life insurance policy or annuity;
                    e)             Statement that the senior should  
                         consult an independent expert regarding  




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                         legal and tax issues of purchasing an  
                         annuity or using the annuity to qualify for  
                         Medi-Cal;
                    f)   Free look period;
                     g)           A statement encouraging the senior  
                         to contact existing insurers about the costs  
                         of surrendering existing policies;

          17. Would impose restrictions on the sale of annuities and  
              insurance settlements in the home of a senior (age 65  
              +), including a requirement to deliver to the senior's  
              home, 24 hours in advance of the meeting, a notice  
              stating that the meeting can be cancelled, the right of  
              a senior to have others present during the sales  
              presentation, phone numbers for the Department of  
              Corporations, and other specified information;

          18. Would prohibit agents from making any statement, other  
              than a greeting, before informing the senior (age 65 +)  
              of the name of the agent, name of the insurer, and that  
              a life insurance product or annuity may be offered,  
              other specified information, and would also require the  
              display of identification to the senior;

          19. Would make "unnecessary replacement" of an annuity, as  
              defined, a violation of the insurance code;

           COMMENTS

           1.   Purpose of the bill  .  According to the author, SB 620  
              is a comprehensive bill aimed at reforming the sale of  
              annuities and other specified products to seniors.  
            
          2.   Support  .  The author states that testimony at the  
              February 27th hearing before this committee, "Financial  
              Planning or Fleecing of Seniors:  Insurance Products  
              and Investments,"  revealed that some advertising to  
              seniors is misleading.  For example, seminars for  
              financial planning are often held at senior centers or  
              through church groups.  Seniors who attend often have  
              no idea that the purpose of the seminars is to develop  
              sales leads for insurance products.  SB 620 would  
              require that they be informed in advertisements that  
              the purpose of the event is to develop sales leads.   
              Professional titles are proliferating, and these  
              further confuse seniors (and perhaps all buyers)  




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              regarding the competence of the sales representative to  
              offer advice about complex legal, tax and insurance  
              issues.  SB 620 would permit only certain types of  
              professional credentials to be used in a presentation  
              to seniors.  The author is deeply concerned about  
              whether certain types of insurance products are even  
              suitable for sale to seniors.  For example, and as  
              evidenced during the February hearing, some seniors are  
              sold products with steep surrender charges and these  
              may be inappropriate for a person who could confront  
              sudden and high medical costs due to deteriorating  
              health.  

              Testimony during the hearing from one deputy district  
              attorney demonstrated that even when a senior is  
              defrauded and the problem uncovered within days, the  
              amount owed is still difficult to determine and the  
              insurer may not have the funds available to readily  
              remit. Thus, insurers should be prohibited from  
              investing funds during the 30 days free look period,  
              absent informed approval by the senior.  

              The California Advocates for Nursing Home Reform  
              (CANHR) believes that SB 620 is needed because every  
              year thousands of California's senior citizens are  
              responding to misleading advertisements and sales  
              pitches purporting to offer expert advice, but instead  
              are left with substantial financial losses and their  
              estate planning objectives turned upside down.  "SB 620  
              enacts restrictions in advertising practices,  
              establishes a much-needed requirement for product  
              suitability, and raises the education and ethics  
              standards for insurance sales agents."  

              The Gray Panthers generally agree with the statements  
              set forth by CANHR.

          3.   Opposition  .  The Association of California Life &  
              Health Insurance Companies (ACLHIC) believes that the  
              bill contains many unworkable "suitability"  
              requirements.  These should be further debated by the  
              National Association of Insurance Commissioners before  
              legislative action is taken.  In addition, the  
              rebuttable presumption against the sale of any deferred  
              annuity to a senior age 65 or older would deprive these  
              consumers of valuable financial protection.  




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              ACLHIC suggest that the presumption of unsuitability be  
              dropped from the bill or modified to apply only to  
              persons 75 years of age or older.  ACLHIC also wants  
              the supplemental application requirements dropped from  
              the bill  (generally speaking, page 5, lines 13 - 34).   
              ACLHIC wants section 10127.18 (regulation of home  
              visits) stricken from the bill. Other industries aren't  
              required to take these steps, and these provisions are  
              going to cause confusion about what should happen if  
              the meeting is held in the agent's office rather than  
              at the senior's home.   ACLHIC developed several other  
              proposed changes to the bill and will be available to  
              explain those to the committee.

               Oppose unless amended  .  Variable Annuity Life Insurance  
              Company (VALIC) Financial Advisors believes that the  
              bill has many positive provisions dealing with abusive  
              sales practices, including sections dealing with  
              training and disclosure requirements.  VALIC objects to  
              the presumption of unsuitability of a deferred annuity  
              to a senior.  From VALIC's perspective, there are  
              numerous burdensome procedures that would be required  
              if a sale to a senior were contemplated, and these  
              procedures would substantially raise the delivery costs  
              of insurers, thereby lowering the rate of return that  
              the insurer is able to pay to a senior.  VALIC urges a  
              more "targeted approach" to the problem, and encourages  
              the author to wait for NAIC suitability  
              recommendations.

              The California Coalition of Insurance Professionals  
              (CCIP) also lauds most sections of the bill, and  
              opposes the presumption of unsuitability.  CCIP notes  
              that an immediate annuity with a guaranteed income for  
              life at a favorable interest rate may be an important  
              investment option for seniors.  A deferred annuity also  
              offers a valuable choice for seniors, although if the  
              annuity might be surrendered then it might not be  
              appropriate.  "When suitability and planning are  
              observed, the results of the sale of deferred annuities  
              to seniors can be very positive."  Compared to a CD,  
              for example, a senior can allow interest on a deferred  
              annuity to accrue tax fee, can still withdraw up to 10%  
              of the invested amount annually with no penalty, and  
              the surrender charge is eliminated after 5 years.  This  




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              scenario happens much more frequently than the  
              unsuitable sales scenario, according to CCIP.  CCIP  
              also notes that SB 620 doesn't provide an agent with a  
              "safe haven" because the bill doesn't establish  
              suitability standards.  CCIP also opposes the bill's  
              provisions restricting the use of professional  
              designations.  CCIP will probably propose language that  
              it would like to see, allowing training organizations  
              approved by the IC.

              Nationwide Financial Enterprise (NFL), Insurance Agents  
              and Brokers Legislative Council (ABL), and the Life  
              Settlement Institute (LSI) all oppose specific  
              provisions of the bill.  Abuses in the purchase of  
              viatical settlements are already being addressed  
              through a two year bill, AB 1103 (Laird).   These three  
              opponents object to the late addition of this topic to  
              the bill and ask that the author wait for the DOI and  
              Assemblymember Laird to develop a "comprehensive scheme  
              to regulate insurance settlements."  These opponents  
              also believe that the abuses highlighted by the author  
              do not occur amongst all the products identified in the  
              bill-life insurance settlements/viaticals, annuities,  
              life insurance.  "The bill should be 'narrowed' to deal  
              only with the fraudulent sale of annuities through  
              misrepresentation to seniors-the main abuses cited by  
              the author.  

              NFL, ABL, and LSI express particular concern about the  
              addition to law of a "special duty of suitability to  
              seniors" (page 4, starting at line 27 and continuing  
              onto the next page).  The creation of a special duty,  
              the presumption that deferred annuities are unsuitable,  
              and the newly required and yet "vague" suitability plan  
              will spawn excessive litigation and are simply  
              "unworkable."  Opponents have numerous objections to  
              language in the bill, and propose technical amendments  
              as well.  Presumably, they will make these detailed,  
              lengthy objections known to the committee during the  
              hearing.

           BACKGROUND  

              On February 27, 2003, the Senate Insurance Committee  
              held a hearing entitled, "Financial Planning or  
              Fleecing of Seniors:  Insurance Products and  




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              Investments."  

              According to the committee background report, during  
              the past five years, the California Department of  
              Insurance (DOI) has received approximately 2500  
              complaints and inquiries that pertain to annuity  
              products.  DOI figures indicate that 25% of the  
              complaints have involved senior citizens.  However,  
              cases involving seniors probably make up a much higher  
              percentage of the complaints because DOI does not  
              always identify the age of the complainant, and victims  
              do not always disclose their age.  

              At the February hearing, the committee heard about  
              complex, lengthy legal actions by deputy district  
              attorneys and through private counsel to recover funds  
              from unsuitable investments sold to seniors.  Reliance  
              upon friends, churches, misleading advertisements, high  
              pressure, in-home sales tactics, and steep surrender  
              charges combined to deprive victims of funds needed to  
              pay for health care, housing and other essentials.   
              Additional, significant information generally discussed  
              during the February hearing is available at the  
              committee web site at:  
               www.sen.ca.gov/htbin/testbin/seninfo_dated?sen.committee 
              .standing.insurance.info_hearings.backgrounds  .

              It should also be noted that the committee has not  
              discussed, in depth, the role of the California Life  
              and Health Insurance Guarantee Association (CLHIGA) in  
              assuring consumers about the safety of their  
              investments.  To the degree that agents and brokers try  
              to assure seniors that some risky investments are "just  
              like a CD," this is not true if the investment is  
              guaranteed by the fund.  The fund, generally speaking,  
              only offers a partial repayment of the lost investment  
              if the insurer becomes insolvent.  The formulas are  
              complex, but the amount that CLHIGA would pay is often  
              only known after an analysis done as part of the  
              insolvency process.

           QUESTIONS

           1.        Given the amount of money, time and energy  
              expended by district attorneys and others to recover  
              money for seniors who have been misled in the purchase  




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              of annuities and other similar products, should the  
              state establish significantly greater protections for  
              this segment of the population than exist under current  
              law?

          2.  Fear about the cost of nursing home care is often used  
              by sales agents to convince seniors that they can  
              become Medi-Cal eligible for nursing home care, and  
              still pass along substantial assets to heirs, using  
              some types of insurance products.  If regulations are  
              revised as expected, recovery of assets may occur in  
              the future.  If this bill passes, will the potential  
              recovery of assets invested in annuities and other  
              products be explained to seniors?
              
          3.  Will annuities and other investments deemed  
              presumptively unsuitable pursuant to this bill be sold,  
              as a practical matter, to seniors should this bill pass  
              as presented?

          4.  Is it fair to seniors to deny them the opportunity to  
              transact insurance and make investments in the same  
              products generally available to the broad public?

          5.       Are investments in viatical settlements of such a  
              different nature, or the problems in this market so  
              different, that they should be excluded from a bill  
              that otherwise focuses on life insurance, annuities and  
              guaranteed investment contracts?

          6.  In Section 10127.18, the author proposes to require  
              several new steps before sales can be made in a  
              senior's home.  Will agents, wishing to avoid these  
              extra steps, simply move high-pressure sales into the  
              office of the agent?  If so, would this defeat the  
              purpose of Section 10127.18.

           AMENDMENT

           1.   On page 4 at line 33, strike the word "the" before the  
               word annuity and insert "any," in order to clarify the  
               intent of the author, and provide a citation to the  
               definition of the "community spouse resource  
               allowance" in order to clarify the text.
           
           RELATED LEGISLATION




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                SB 618 (Scott): Would authorize the Insurance  
               Commissioner (IC) to suspend or revoke an insurance  
               agent's license if the agent induces the client to  
               make the agent a beneficiary under specified insurance  
               policies or in the client's will.

               AB 1103 (Laird):  Would create new standards for the  
               sale of viatical settlements to investors, including  
               written disclosures, standards for sellers, net  
               penalties, etc.

               Prior Pertinent Legislation  :

                     AB 489 (Figueroa), Chapter 440, Statutes of  
          1997, provides that  
                     a person with a terminal illness has a right to  
          make an absolute  
                     assignment for value of his or her interest in  
          life insurance.

                     SB 1137 (Kopp), Chapter 278, Statutes of 1997,  
          requires life and  
                     disability insurance agents in the business of  
          viatical  
                     settlements to be regulated by the IC.
           
          POSITIONS
          
          Support
           
          Gray Panthers
          California Advocates for Nursing Home Reform
           
          Oppose
               
          Association of California Life & Health Insurance Companies

           Oppose Unless Amended
           
          Coalition of California Insurance Professionals
          Nationwide Insurance Enterprise
          Insurance Agents and Brokers Legislative Council
          The Life Settlement Institute
          VALIC Financial Advisors 





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          Consultant:   Brian Perkins 916-445-0825